A one-day delay in reporting an unwelcomed kiss in the workplace did not render the complaint un-credible, an administrative judge held and the Federal Circuit recently affirmed.

On December 14, 2017, a VA nurse, Jenica Pearson, reported that housekeeping aid Arthur Hairston was harassing another nurse, Wendy Ganoe. Pearson specifically reported that Hairston had kissed Ganoe the day before. Hairston’s supervisor instructed him to not return to the unit where Ganoe worked. Nonetheless, Ganoe and other employees reported seeing Hairston in the unit later that day. Pearson called VA Police, and the VA conducted an investigation into Hairston’s conduct.

On January 26, 2018, under VA’s recently enacted authority codified at 38 U.S.C. § 714, VA issued a notice proposing to remove Hairston from employment based on two charges: (1) conduct unbecoming a federal employee; and (2) failure to follow instructions. Hairston responded to the proposal in writing. Soon thereafter, on February 7, 2018, VA sustained both proposed charges and removed Hairston from his employment effective two days later.

Hairston then appealed his removal to the Merit Systems Protection Board which assigned his case to an administrative judge, who conducted a hearing where Hairston and other VA employees testified. Under 38 U.S.C. § 714, the administrative judge adjudicated VA’s charges against Hairston by “substantial evidence,” a lesser evidentiary burden than “preponderance of the evidence,” applied in Title 5 actions.

The administrative judge found that “substantial evidence” supported the “conduct unbecoming” charge against Hairston, but not the “failure to follow instructions” charge. On that basis, the administrative judge affirmed Hairston’s removal. The administrative judge’s decision then became the MSPB’s final decision by operation of law when neither party appealed it to the appellate level of the MSPB. Hairston then appealed the final decision to the U.S. Court of Appeals for the Federal Circuit.

Among the arguments Hairston argued to the Federal Circuit, without counsel, was that Ganoe’s and Pearson’s testimony was inconsistent with their prior statements and that they were “impeached and rebutted” by other witnesses. In essence, the court wrote, he raised a challenged to the administrative judge’s credibility determinations. Such determinations, the court has previously held, are “virtually unreviewable” on appeal.

The court began its analysis noting that the administrative judge had “carefully examined the testimony of each witness and credited Ms. Ganoe’s testimony.” The administrative judge had also considered Hairston’s argument that Ganoe’s one-day delay in reporting the incident showed the kiss “was not unwelcome.”

In rejecting Hairston’s argument, the administrative judge considered Ganoe’s explanation that she was confused, upset, and humiliated; found her reasons to be “logical and convincing;” and concluded that “her delay in reporting the matter does not indicate that she welcomed the kiss or that it was not improper.” The court affirmed that determination, holding Hairston “has not provided sufficient reason to overturn the administrative judge’s credibility determinations.”

Moreover, the court observed, Hairston admitted before the administrative judge that he had kissed Ganoe. Thus, the court held “there is substantial evidence in the record that the administrative judge could have reasonably sustained the VA’s termination of Mr. Hairston’s employment based on the conduct unbecoming charge.”